RAVI RANJAN,SUJIT NARAYAN PRASAD,JJ. - (1.) The instant intra-court appeal is against the order dated 13.06.2018 passed by learned Single Judge of this Court in W.P.(S) No. 5426 of 2016 whereby and whereunder the order of punishment passed against the respondent-writ petitioner, has been modified to the extent by quashing the part of the punishment treating the period of absence as break in service and non-pensionable.
(2.) Before delving into the merit of the issues, it requires to refer the factual aspect which is necessary for proper adjudication of the issue agitated in the present appeal. The respondent-writ petitioner had joined as Assistant Engineer in the Water Resource Department, Government of Bihar in the year 1987, remained posted at different places and was lastly posted at Minor Irrigation Sub-Division, Khunti vide order dated 28.06.2003 where he joined on 11.08.2003. He was again transferred to the Urban Development Department, Government of Jharkhand vide letter No.1491 dated 02.08.2004 issued by the Urban Development Department, Government of Jharkhand and in pursuance thereto, he had joined on 19.10.2004 as also handed over charge of the post of Assistant Engineer, Khunti on 23.11.2004 but due to the Assembly Election of 2004, notified on 17.12.2004, the Model Code of Conduct was notified and, therefore, he was not posted anywhere by the Urban Development Department in spite of submitting his joining and as such he had made a request to the Secretary, Urban Development Department, Government of Jharkhand, Ranchi vide his letter dated 21.12.2004 to post him otherwise there will be difficulty in getting salary with effect from the month of December, 2004. On receipt of such letter, the Urban Development Department issued a letter bearing No. 2398 dated 17.12.2004 by returning the services of the respondent-writ petitioner to the Water Resource Department which was protested by the him by making a request to post him anywhere under the Urban Development Department but having not been responded by the authorities concerned, a writ petition being W.P.(S) No. 328 of 2005 was filed assailing the order dated 17.12.2004 and during the pendency of the writ petition, the respondent-writ petitioner was posted as Assistant Engineer, Design Division No.2, Medininagar vide order as contained in Memo No. 621 dated 03.03.2005. In consequence thereof, the respondent-writ petitioner filed an interlocutory application being I.A. No. 969 of 2005 seeking leave of the Court to allow amendment to challenge the order as contained in Memo No. 621 dated 03.03.2005 but the said writ petition was dismissed vide order dated 28.07.2005 on the ground that the services of the respondent-writ petitioner was repatriated to the parent department only because of non-availability of post in the Urban Development Department. The respondent-writ petitioner, thereafter, submitted his joining in the Water Resource Department, Design Division No.2, Medininagar on 01.08.2005 and requested to allow him to take charge against the vacant post of Assistant Engineer but the post having not vacant, the respondent-writ petitioner was not allowed to assume the charge which he brought to the notice of the respondent authorities vide letter dated 03.08.2005. The respondent-writ petitioner thereafter filed Letters Patent Appeal being L.P.A. No. 588 of 2005 which was dismissed vide order dated 08.02.2006 against which he filed Special Leave Petition being S.L.P.(Civil) No. 8042 of 2006 before the Hon'ble Supreme Court which was also dismissed vide order dated 07.07.2006. Thereafter, the respondent-writ petitioner, under the provision of Right to Information Act, made an application before the Public Information Officer, Urban Development Department seeking information about availability of vacancies of the post of Assistant Engineer upon which information had been furnished showing the availability of vacancies and as such, the respondent-writ petitioner filed review petition being Civil Review No.102 of 2006 but the same was dismissed vide order dated 08.02.2007 against which Special Leave Petition was filed before the Hon'ble Supreme Court being S.L.P.(Civil) No. 7733 of 2007 which was also dismissed vide order dated 07.05.2007 with the specific direction to the Water Resource Department, Government of Jharkhand to look into the grievance of the respondent-writ petitioner pertaining to the payment of salary due since December, 2004. The respondent-writ petitioner again approached to this Court by filing writ petition being W.P.(S) No. 4325 of 2007 agitating the grievance about non-posting, which was disposed of vide order dated 23.08.2007 directing the respondent authorities to consider the representation of the respondent-writ petitioner in the light of the order dated 07.05.2007 passed by the Hon'ble Apex Court. The respondent-writ petitioner also filed another writ petition being W.P.(S) No. 5702 of 2007, wherein besides other reliefs, prayer was also made for quashing of the letter No. 3790 dated 13.09.2007 by which the respondent-writ petitioner was informed about nonsubmission of his joining on the vacancy created after transfer of the Assistant Engineer. The said writ petition was disposed of vide order dated 15.07.2011 with an observation which reads hereunder as :- "24. Be that as it may, in case the petitioner joins the duty within the aforesaid period on the place of posting given by the respondents by passing a separate order ignoring all previous orders, then the respondents may pay regular salary to the petitioner from the date of joining the duties on the said post without waiting for any other formalities. However, if the respondents want to take any action against the petitioner for his not joining the posting/duties since the year 2004, then they are free to take action in accordance with law then the payment of arrears of salary shall depend upon the result of that proceeding for which this Court is not passing any order in the present facts and circumstances as the petitioner admittedly is not working on any post. In case department is not intending to take action against the petitioner on this count within one month from today, they shall pay the arrears of salary to the petitioner within one month thereafter." The authorities, without initiating any departmental proceeding, passed order of punishment on 13.08.2011 holding therein about his non-entitlement for salary from 03.03.2005 till one day before the date of fresh posting, i.e., 15.08.2011, which period shall be treated as break in service and would be non-pensionable. The aforesaid order of punishment was challenged by filing writ petition being W.P.(S) No.5127 of 2011 which was allowed vide judgment dated 17.07.2014 by which the order of punishment dated 13.08.2011 was quashed with a direction upon the respondents to initiate regular departmental proceeding within one month from the date of passing of the order and the charges which the respondents may deem fit against the petitioner must be communicated to him within a fortnight and performing all the formalities, entire exercise must be completed within a period of six months from the date of order. In pursuance to the aforesaid order, the memorandum of charges dated 05.08.2014 was served upon the respondent-writ petitioner alleging therein the charge of not giving his joining in the parent department in pursuance to the letter No. 2398 dated 17.12.2004 and further through departmental notification No.621 dated 03.03.2005 by which he was posted as Assistant Engineer in the Design Division No.2, Medininagar. The respondent-writ petitioner participated in the enquiry and submitted detailed reply denying the charges, as would appear from Annexure-17 to the paper book, which was responded by the department as annexed at Annexure 18 and 19 to the paper book. The enquiry had proceeded and report was submitted by Enquiry Officer which has been annexed as Annexure-21 to the paper book in which the charges have been found to be proved. The respondent-writ petitioner was served with second show cause notice (Annexure-22) which was duly responded and thereafter the order of punishment was passed imposing therein three punishments i.e., (i) Censure; (ii) he will not be entitled for any salary for the period from 03.03.2005 till one day prior to the issuance of the fresh posting order; and (iii) the said period would be treated to be nonpensionable and break in service. The respondent-writ petitioner filed an appeal before the appellate authority who declined to interfere with the order passed by the disciplinary authority as would appear from Annexure-26 to the paper book, thereafter, the order was challenged by filing writ petition being W.P.(S) No. 5426 of 2016 which was partly allowed by the learned Single Judge against which the present intra court appeal has been filed.
(3.) Mr. Dhananjay Kumar Pathak, learned counsel appearing for the appellant State of Jharkhand has taken the following grounds for assailing the order passed by the learned Single Judge :- (i) Since in the regular departmental proceeding charge has been found to be proved, though some technical lapses have been committed by the disciplinary authority, the writ court ought to have taken into consideration this aspect of the matter by quashing the order and remitting it for passing a fresh order in accordance with law as because, according to him, when the charge has conclusively been proved after providing adequate and sufficient opportunity of being heard, merely on the technicalities, the writ petitioner cannot be made escort free. (ii) So far as the punishment of Censure is concerned, the same has also been quashed by the learned Single Judge only on the ground that the absence, which has been said to be unauthorized, cannot be held to be willful and intentional, but according to the learned counsel appearing for the State, the Enquiry Officer has given conclusive finding by holding the absence as willful since even in spite of the order of repatriation to the parent department, from where also the order of posting was issued posting the respondent-writ petitioner in the Design Division No.2, Medininagar, he has not chosen to join and hence it cannot be said to be without any intention and further, the learned Single Judge ought not to have come to the conclusive finding by holding the unauthorized absence as non-willful and unintentional by substituting his views to that of the views expressed by the Enquiry Officer which has been accepted by the disciplinary authority. (iii) The scope of judicial review under Article 226 of the Constitution of India so far as it relates to interference in the order of punishment is very least and if any finding has been recorded by the Enquiry Officer, the same cannot be disturbed by the High Court unless there is any perversity in the same but no such perversity has been pointed out by the respondent-writ petitioner before the learned Single Judge and hence, the order quashing punishment of Censure is not justified. (iv) So far as quashing of punishment of break in service or not to treat the period a pensionable service as it is not under the list of punishments is concerned, there is no dispute about the position of law that the punishment which has not been enshrined under the list of punishments applicable under the Rules cannot be imposed, but after quashing it, the matter ought to have been remitted to the authority to pass order afresh in accordance with law. Otherwise, in the present context, even though the charge has been found to be proved, the respondent-writ petitioner will be set free. ;